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56 N.H. 21

Matthews v. Crosby

Supreme Court of New Hampshire

Decided August 13, 1875

Supreme Court of New Hampshire · decided 1875-08-13

From Merrimack Circuit Court.- Assumpsit upon the common money counts. This action was sent to a referee, who reported his conclusions of fact and law as follows: “Against the defendant’s objection, the plaintiff was allowed to put in evidence two writings, both alike, upon each of which he claimed to recover $40, with interest from its date.

Good law ✅— No negative treatment on recordhow we know

Decided 1875-08-13

How this case has been cited

Cited by 5 later decisions — most recently May 1975

5 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1The fair construction of the term "profits," in the notes in question, is, that the sum which the promisor agrees to pay is to be taken as the amount of profits which he has received on some past transaction, and is to pay to the payee of the note or his order. That being so, the admission of parol testimony, to disclose the agreement sought to be proved, could not be allowed without giving by parol testimony a meaning to the writing different from what is apparent on its face, which is inadmissible. There would be, then, nothing for a purchaser of the note to inquire about. By its fair construction, it imports a note absolutely payable, and not payable on a contingency, and was therefore a good negotiable note.

¶2The referee also finds, as matter of fact, that there was nothing in the term "profits" having a suspicious appearance, or calculated to put the purchaser upon inquiry. This is clearly matter of fact and not matter of law; and the fact having been passed upon and found by the referee, there is nothing left for the court to consider.

¶3The note, therefore, being on its face a good negotiable note, and there being in fact nothing about it to put the purchaser on inquiry, *25 and having been purchased in good faith before it became due, the plaintiff is entitled to hold it free from any equities which might exist between the original parties to the note.

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Case posture

Posture: ASSUMPSIT upon the common money counts. This action was sent to a referee, who reported his conclusions of fact and law as follows: Against the defendant's objection, the plaintiff was allowed to put in evidence two writings, both alike, upon each of which he claimed to recover $40, with interest from its date. These writings were as follows: `GROTON, NEW HAMPSHIRE, November 21st, 1871. `One year after date, for value received, I, the subscriber, of Groton, county of Grafton, state of New Hampshire, promise to pay Jacob B. Rand or bearer, forty dollars, _____ profits _____ with interest. P. O. Grafton, N.H. A. B. CROSBY.' On the above date, one M. called upon the defendant, and induced him to buy the agency of a worthless patent, and to give therefor four writings like the above. The understanding between the parties was, that at the expiration of a year M. would call upon the defendant and settle, by ascertaining the amount of profits which the defendant had realized from the patent, which amount was then to be inserted in the blank space preceding the word `profits' in the written instrument, the words `forty dollars' to be then erased. The defendant realized no profits, and, as to him, the writing was entirely without consideration, and obtained from him by fraud. The defendant never saw M. again. Subsequently, one Fellows purchased a peice [piece] of woodland of the plaintiff for $700, paying therefor in such instruments as the foregoing, including those which are the subject of this suit. The plaintiff, relying upon the representations of Fellows, whose reputation was fair enough then, bad as it may be now, took these papers in payment, and became the innocent bona fide holder thereof before their maturity. He does not remember whether he observed the word `profits' If he did, it did not suggest to him any suspicion of unfairness, nor did it suggest to his mind any inquiry as to its meaning. He supposed he was receiving good and valid negotiable promissory notes. As matter of law, I hold that these instruments, in the hands of the plaintiff, are valid, negotiable promissory notes, and may be recovered under the common money counts; that the word `profits.' — quoad the plaintiff — does not express or suggest a contingency or uncertainty, but, rather, an absolute existing fund, as the consideration of the promise, and on account of which the money is to be paid. The word `profits,' as inserted in the note, was not such an apparent defect or infirmity as necessarily to raise a suspicion in the mind of the plaintiff, or to cast such a shade upon the transaction as to put him upon inquiry. The questions of law raised by this report were transferred to this court by FOSTER, C. J.

Source: CourtListener

Court

Supreme Court of New Hampshire